Dorian v. Amazon Web Services Inc

Filing 182

ORDER granting Defendant's 172 Motion to Seal Protected Material in Support of its Opposition to Plaintiffs' Motion for Leave to Serve Four Additional Interrogatories. Signed by Judge John H. Chun. (SB)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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AVELARDO RIVERA and YASMINE
ROMERO, individually, and on behalf of all
others similarly situated,

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v.

Plaintiffs,

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AMAZON WEB SERVICES, INC.,
Defendant.

No. 2:22-CV-00269-JHC
AMAZON WEB SERVICES, INC.’S
UNOPPOSED MOTION TO FILE
UNDER SEAL PROTECTED
MATERIAL IN SUPPORT OF ITS
OPPOSITION TO PLAINTIFFS’
MOTION FOR LEAVE TO SERVE
FOUR ADDITIONAL
INTERROGATORIES AND ORDER
NOTED ON MOTION CALENDAR:
MARCH 25, 2024

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MOTION TO FILE UNDER SEAL
(NO. 2:22-CV-00269-JHC)

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Phone: [phone]
Fax: [phone]

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II.

CERTIFICATION PURSUANT TO LOCAL RULE 5(g)(3)(A)

Pursuant to Local Civil Rule 5(g)(3)(A), counsel for AWS, Justin Potesta and Mylan
Traylor, met and conferred with counsel for plaintiffs, Schuyler Ufkes of Edelson PC and Max S.
Roberts of Bursor & Fisher, P.A., via web conference on March 25, 2024, regarding the need to
file the above-referenced documents under seal, ways to minimize the content to be filed under
seal, and other alternatives to filing under seal. Plaintiffs do not oppose AWS’s motion to seal.
III.

BACKGROUND AND SEALED MATERIALS

This case involves claims under the Illinois Biometric Information Privacy Act (“BIPA”)
in connection with AWS’s Rekognition technology. See Dkt. 88. Recognizing that confidential
and commercially sensitive information would likely be at issue in this case, the parties
submitted an agreed Protective Order, which permits the parties to designate certain documents,
testimony, and other discovery materials as “Confidential” and/or “Highly Confidential –

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Attorneys’ Eyes Only,” and the Court entered it. See Dkt. 55. The Protective Order provides that

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documents marked as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” shall not

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be disclosed, with the exception of disclosure to a limited group of individuals. See id. at § 5.

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AWS seeks to seal portions of documents that reveal two categories of proprietary and
sensitive information.
First, AWS seeks to seal a list of customer accounts that reflects various customers that

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used certain Rekognition Application Programming Interface (“API”) functions. While AWS

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publicly discloses the names of some of its customers, it does not disclose the names of all

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customers, much less the precise Rekognition functions that each customer might use. Indeed,

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AWS keeps this information secret, including through technical controls. See Simmons Decl. ¶ 4.
Disclosing this information could cause competitive harm to AWS. See id. This information is
included in the Partial Customer Account List and AWS’s Opposition Brief.
Second, AWS seeks to seal portions of documents that disclose information about the
architecture and processes underlying the Rekognition service. Disclosure of this non-public

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MOTION TO FILE UNDER SEAL
(NO. 2:22-CV-00269-JHC) - 3

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Phone: [phone]
Fax: [phone]

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information would reveal how the Rekognition service, including Compare Faces and Index

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Faces, is structured and operates, as well as how AWS tests certain aspects of Rekognition.

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Simmons Decl. ¶ 5. Disclosure of this information would cause AWS significant competitive

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harm, as AWS competitors who gleaned insight into the non-public details of Rekognition’s
architecture and processes could potentially improve their own, competing services, and it could
provide bad actors with information that could assist them in circumventing AWS’s security
measures. Id. This category of information is included in the AWS’s Interrogatory Responses
and AWS’s Opposition Brief.
IV.

LEGAL STANDARD

Although “[t]here is a strong presumption of public access to the court’s files,” Local
Civil Rule 5(g), that presumption may be overcome where, as here, the moving party has
“compelling reasons” to seal a document appended to a motion, In re Microsoft Xbox 360

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Scratched Disc Litig., No. C07-1121-JCC, 2009 WL 481325, at *1 (W.D. Wash. Feb. 24, 2009);

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Karpenski v. Am. Gen. Life Companies, LLC, No. C12- 1569RSM, 2013 WL 3191878, at *5

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(W.D. Wash. June 20, 2013) (“[A] party seeking to seal a judicial record attached to a dispositive

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motion or presented at trial must articulate ‘compelling reasons’ in favor of sealing.”).

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Compelling reasons exist where “sealing is required to prevent judicial documents from

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being used as sources of business information that might harm a litigant’s competitive standing.”

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Karpenski, 2013 WL 3191878, at * 6 (internal quotations omitted); see also In re Elec. Arts, Inc.,

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298 F. App’x 568, 569 (9th Cir. 2008) (“[T]he common-law right of inspection has bowed before

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the power of a court to insure that its records are not used . . . as sources of business information

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that might harm a litigant’s competitive standing.” (quoting Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589, 598 (1978)); In re Microsoft XBox 360 Scratched Disc Litig., 2009 WL 481325, at
*1 (finding “compelling reasons” to seal “confidential business information” because “these
materials contain proprietary information that would cause Defendant competitive harm if
disclosed”). Sealing is particularly appropriate where sealed exhibits contain “confidential

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MOTION TO FILE UNDER SEAL
(NO. 2:22-CV-00269-JHC) - 4

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Phone: [phone]
Fax: [phone]

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business information regarding ... technical specifications and other attributes” that “would cause

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Defendant competitive harm if disclosed.” In re Microsoft XBox 360 Scratched Disc Litig., 2009

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WL 481325, at *1. And sealing is also appropriate where documents reveal customer names and

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related information. See, e.g., Silver Fern Chem., Inc. v. Lyons, No. 2:23-CV-00775-TL, 2023
WL 4624477, at *2 (W.D. Wash. July 19, 2023) (permitting sealing of “customer identities and
their associated needs and transactions”); Johnstech Int’l Corp. v. JF Microtechnology SDN
BHD, No. 14-CV-02864-JD, 2016 WL 4091388, at *3 (N.D. Cal. Aug. 2, 2016) (permitting
redaction of “specific customer names”).
V.

ARGUMENT

Compelling reasons exist to maintain under seal the confidential and proprietary
information contained in the documents described above. As referenced above, AWS does not
publicly disclose the relevant information regarding its customers or Rekognition’s underlying
architecture and processes. Indeed, AWS takes extensive measures to keep this information
secret, which include limiting employee access to much of this information via technical and
other controls.
Public disclosure of this information could cause significant harm to AWS in a variety of
ways. Allowing the public access to information about AWS’s customers that use certain
services and functionalities could “harm [AWS’s] competitive standing.” Continental Auto. Sys.,

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Inc. v. Avanci, LLC, 2019 WL 6612012, at *4 (N.D. Cal. Dec. 5, 2019) (citation omitted); see,

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e.g., Johnstech Int’l Corp. v. JF Microtechnology SDN BHD, No. 14-CV-02864-JD, 2016 WL

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4091388, at *3 (N.D. Cal. Aug. 2, 2016); see also Simmons Decl. ¶¶ 4-5. Disclosure of technical

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information about Rekognition’s design and operation would cause AWS significant competitive

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harm, as AWS competitors who gleaned insight into the non-public details of Rekognition’s

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architecture and processes could potentially improve their own, competing services, and it could

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provide bad actors with information that could assist them in circumventing AWS’s security

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measures. Simmons Decl. ¶ 5.

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MOTION TO FILE UNDER SEAL
(NO. 2:22-CV-00269-JHC) - 5

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Phone: [phone]
Fax: [phone]

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AWS has sought to minimize the amount of material to be sealed in its Opposition and

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supporting materials, and less restrictive means are not available. While some documents are entirely

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confidential, AWS has, where appropriate, sought only to redact material that reflects proprietary and

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commercially sensitive information, which goes beyond what would aid the public in understanding
the parties’ positions and the judicial process. See Coloplast A/S v. Generic Med. Devices, Inc., No.
10-0227, 2012 WL 3629037, at *1–2 (W.D. Wash. Aug. 22, 2012) (granting a motion to seal a
motion, provided that the party submit a version that redacts any portion referencing the confidential
exhibits); see generally Richardson v. Mylan, Inc., No. 09-CV-1041-JM (WVG), 2011 WL 837148,
at *2 (S.D. Cal. Mar. 9, 2011) (finding sealable information of comparatively little value to the
general public in terms of enhancing its understanding of the judicial process).

Furthermore, this information provides little-to-no value in terms of aiding the public in
understanding the parties’ positions on the Motion for Leave and the judicial process in this case.

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No other public interest reasons justify disclosure of this information. For example, the

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information does not affect public health and safety and does not concern any public entities or

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officials. The confidential information concerns only business and technical information that

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would cause competitive harm to AWS if it was made public. See Simmons Decl. ¶ 4-5.
VI.

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CONCLUSION

For the foregoing reasons, AWS respectfully requests an order allowing it to file under seal
unredacted versions of the documents described above.
I certify that this memorandum contains 1,485 words, in compliance with the Local Civil Rules

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MOTION TO FILE UNDER SEAL
(NO. 2:22-CV-00269-JHC) - 6

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Phone: [phone]
Fax: [phone]

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Dated: March 25, 2024

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By: /s/ Ryan Spear
Ryan Spear, Bar No. 39974
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Telephone: [phone]
Facsimile: +1.206.359.9000
[e-mail]

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MOTION TO FILE UNDER SEAL
(NO. 2:22-CV-00269-JHC) - 7

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3099
Phone: [phone]
Fax: [phone]